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(j ~. 3\1" J lJ .,. v . . IV. Ground Water Rights Character of ground water right Appropriative. - Rights to the use of ground water by prior appro- priation may be acquired under the laws of II Western States (as above noted, Idaho, Kansas, Nevada, New Mexico, North Dakota, Oklahoma, Cregon, South Dakota, Utah, Washington, \./yoming). Nonapproprlatlve. - The other ground water statutes d~ not provide for the acquirement of water rights in the sense In which this term is commonly used In the West. The courts of Arlzon3, Californi1, Hawaii, Montana, Nebraska, and Texas accord rights to the use of per:~latin3 water to the owner of overlying land SOlely because of the r~lative situa- tions of land and water, and the Texas statute specifically s~pports the principle. The Colorado Supreme Court recognizes appropriative rl~hts In percolating waters that are tributary to streams, but has not yet h"d occasion to decide the status of rights In nontributary waters. W~gt the several ground water statutes do Is to provide for reg'llatio:1 of e:<isting uses, and some of them Impose restrictions upon the Initiation of new uses as we II. The Montana statute, which regulates the drilling and use of artesian Nel Is, provides that any landowner may Install artesian wells on his land to procure water for domestic, stock, irrigation, or ma,lU- facturing purposes. Preexisting ground water rights The polley of legislatures In enacting ground water control stat- utes Is to specifically recognize valid preexisting water rights. In some States, these are termed "vested rights." This paves the way for preser- vation and continuance of ground water u:es for beneficial purposes ante- dating enactment of the statute, under wh~tever right or clai~ of right such uses I.lay have been made, and disclaims any legislative Intent to avoid providing for due process. Oregon follows a pattern set by Its surface water coce in recogniz- Ing ground water rights basec on actual application of water to beneficial use prior to the effective date of the act, or within a reasonable time thereafter with the use of works then under construction. Provlslcns to the same effect are Included in the Kansas and ~outh Dai<ota lalos. I n North Dakota, a user of. water f rol'l a source I ne ludl "g "underground" for beneficial purposes over a period of 20 years prior to January I, 1934, Is deemed to have acquired a prescriptive right to the use thereof. In a ground water area designated t.y the HawaII Convnisslon on Ground Water Resources as In need of regulation, e~lstir.g lawful and beneficial uses are "preserved" for the user. The Hdw311 SUi1reme Court has hel:! that - 4 -